# Opposition Brief — Ford Motor Motor Co. v. Buell-Wilson (No. 09-297)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2009

## Text

Ye wt
No. 09-297

j Supreme Court, U.S.
- lv y FILED
\XP | oct 2g 2003
!

en ee

CFFECE OF THE CLERK

(ee ee ee

In The Supreme Court
of the United States

OCTOBER TERM 2009

FORD MOTOR COMPANY,
Petitioner,

BENFTTA BUFLL-WILSON AND BARRY S. WILSON.
Respondents.

On Petition For A Writ Of Certiorari
To The California Court Of Appeal

BRIEF IN OPPOSITION

JEROME B. FALK, JR DENNIS A. SCHOVILLE
Counsel of Record LOUIS G. ARNELL

STFVEN L. MAYER SCHOVILLE & ARNELL, LLP

JOHN P. DUCHEMIN 2404 Broadway

HOWARD RICE NEMEROVSKI CANADY San Diego, California 92102
FALK & RABKIN Telephone: 619/232-9901

A Professional C orporation _ Facsimile: 619/232-9904

Three Embarcadero Center, 7th FI.
San Francisco, Califomia 9411 |
Telephone: 415/434-1600
Facsimile 415/217-5910

{frorneys For Respondents

TABLE OF CONTENTS

STATEMENT OF THE CASE

REASONS FOR DENYING THE PETITION

;. FORD DID NOT RAISE THE ISSUE
PRESENTED AT EVERY STAGE

OF T
I]. FORD'S “VAGUENESS/FAIR NOTICE”

HE STATE PROCEEDINGS.

CHALLENGE DOES NOT MERIT
CERTIORARI.

A

CONCLUSION

APPENDIX:

Califomia Law Gave _ Ford
Ample Notice Of The Circum-
stances Under Which Punitive
Damages Could Be Awarded.

Ford Does Not Make (And Has
Not Preserved) A Substantive
Due Process Argument, And
Amici Therefore May Not Do
So.

l'ord’s ““Vagueness/Fair Notice”
Claim Has No Support In This
Court's Cases.

There Is No Conflict In The

Cases.

Excerpts of Appellant’s Petition
for Review in the Supreme
Court of Califomia, filed
August 28, 2006

Page

&

TABLE OF AUTHORITIES

Cases
Adams v. Robertson, 520 U.S. 83 (1997)
B&B Insulation, Inc. v. Occupational Safety &
Health Review Comm'n, 583 F.2d 1364
(Sth Cir, 1978)

Bankers Life & Cas. Co. v. Crenshaw, 486
U.S. 71 (1988)

Barber v. Jefferson County Racing Ass'n, 960
So. 2d 599 (Ala. 2006), cert. denied, 551
U.S. L131 (2007)

Barclays Bank PLC \. Franchise Tax Bd., 512
U.S. 298 (1994)

Beck v. Washington, 369 U.S. 541 (1962)

Bertero v. Nat'l Gen’! Corp., 13 Cal. 3d 43
(1974)

BMW of N. Am., Inc. v. Gore, 517 U.S. $59
(1996)

Boynton v. Virginia, 364 U.S. 454 (1960)

Canyon Ferry Road Baptist Church of East
Helena, Inc. v. Unsworth, 556 F.3d 1021
(9th Cir. 2009)

City of Lincoln v. Barringer, 102 Cal. App. 4th

1211 (2002)

Clark v. Arizona, 548 U.S. 735 (2006)

Colautti v. Franklin, 439 U.S. 379 (1979)

Page(s)

8,9

26

ill

TABLE OF AUTHORITIES

Page(s)

Coll. Hosp., Inc v. Superior Court, 8 Cal. 4th

704 (1994) 13
Connally v. Gen. Constr. Co., 269 U.S. 385

(1926) 20
Ebbetts Puss Forest Watch v. Cal. Dept of

Forestry & Fire Prot., 43 Cal. 4th 936

(2008) §
Egan v. Mut. of Omaha Ins. Co., 24 Cal. 3d

809 (1979) 24
Evans v. Centerstone Dev. Co., 134 Cal. App.

4th 151 (2005) 9
Golden Day Sch., Inc. v. Dep t of Educ., 69

Cal. App. 4th 681 (1999) 6
Grimshaw v. Ford Motor Co., 119 Cal. App. 3d

757 (1981) 12, 14, 15, 22
Haggblom v. City of Dillingham, 191 P.3d 991

(Alaska 2008) 26
Hasson v Ford Motor Co., 32 Cal. 3d 388

(1982) 14,24
Heavenly valley v. El Dorado County Bd. of

Equalization, 84 Cal. App. 4th 1323 (2000) 6
Pac. Mut. Life Ins. Co. v Haslip, 499 US. |

(1991) 18
Palmer v. A.H. Robins Co., 684 P.2d 187

(Colv. 1984) 24, 25

People v. Villa, 45 Cal. 4th 1063 (200%) S

1V

TABLE OF AUTHORITIES

Philip Morris USA v. Williams, 549 U.S. 346
(2007)

Redrup v. New York, 386 U.S. 767 (1967)

Riegel v. Medtronic, Inc., 552 U.S. 312, 128 S.
Ct. 999 (2008)

Roberts vy. Lomanto, 112 Cal. App. 4th 1553
(2003)

Roe v. McDonalds Corp., 129 Cal. App. 4th
1107 (2005)

Roman Catholic Bishop v. Superior Court, 128
Cal. App. 4th 1155 (2005)

Romo y. Ford Motor Co., 113 Cal. App. 4th
738 (2003)

S&H Riggers & Erectors, Inc. v. Occupational
Safety & Health Review Comm'n, 659 F.2d
1273 (Sth Cir. 1981)

Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47
(2007)

Sierra Club v. City of Orange, 163 Cal. App.
4th $23 (2008)

Smith v. Wade, 461 U.S. 30 (1983)

Srate Farm Mut. Auto. Ins. Co. v. Campbell,
538 U.S. 408 (2003)

State v. Thirteenth Judicial Dist. Court, 208
P.3d 408 (Mont. 2009)

26, 2

26

TABLE OF AUTHORITIES

Stoner v. Nash Finch, Inc. , 446 N.W.2d 747
(N.D. 1989)

Sturm, Ruger & Co. v. Day, 594 P.2d 38

(Alaska 1979), overruled on other grounds,

Dura Corp. v. Harned, 703 P.2d 396
(Alaska 1985)

Sw. Tel. & Tel. Co. v. Danaher, 238 U.S. 482
(1915)

Taylor v. [llinois, 484 U.S. 400 (1988)

Toole v. Richardson-Merrell, Inc., 251 Cal.
App. 2d 689 (1967)

T'XO Prod. Corp. v. Alliance Res. Corp., 509
U.S. 443 (1993)

Unilogic, Inc. v. Burroughs Corp., 10 Cal.
App. 4th 612 (1992)

Union Mut. Life Ins. Co. v. Kirchoff, \}69 U.S
103 (1898)

United Parcel Serv, Inc. v. Mitchell, 451 U.S
56 (1981)

Village of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489 (1982)

Webb v. Webb, 451 U.S. 493 (1981)

Wilson v. 21st Century Ins. Co., 42 Cal. 4th
713 (2007)

tN
>

18,

TABLE OF AUTHORITIES

Statutes and Regulations

49 U.S.C. §30103(e)
29 C.F.R. §1926.28(a)
S.CT. R. 14.1 (a)

CAL. CIV. CODE
§3294(a)
§3294(c)(1)
§3294(c)(2)

CAL.R.C1
8.204(a)(1)(B)
8.504(a)
8.504(b)(1)
8.516(b)(2)
&.520(b)(2)

8. 520(b)\(3)

STATEMENT OF THE CASE

Ford’s Petition offers a one-sided account of the facts
and evidence. The Court of Appeal’s opinion fairly summa-
rizes the events that led to this litigation, including the
Wilsons’ catastrophic injuries, and the evidence presented at
trial. Pet. App. 6a-17a.

The Wilsons sued Ford after Mrs. Wilson was crushed
and rendered paraplegic when her Ford Explorer rolled over
and the roof failed. The jury awarded Mrs. Wilson $109.6
million, and Mr. Wilson $13 million, in compensatory dam-
ages. /d. at 17a, 33a. It also awarded $246 million tn punitive
damages. /d. at 18a. The tnal court reduced the compensa-
tory damages to $70 million for Mrs. Wilson and $5 million
for Mr. Wilson, and the punitive damages to $75 million. /d.
at 19a-20a.

The Court of Appeal affirmed the finding of liability but
further reduced both compensatory and punitive damages.
Noting that Ford had not challenged the sufficiency of the evi-
dence (id. at Ila), the court descnbed the history of the
Explorer’s design. Ford based the Explorer on a prior SUV
(the Bronco ll) with a terrible history of instability and
susceptibility to rollovers. /d at 10a-13a. Although Ford
knew of these problems, it retained critical Bronco I! design
elements bearing on stability (a narrow track width and high
engine mount and center of gravity) and carried over a high
percentage of parts from the Bronco Il, while rebranding it as
the Explorer. /d. at 12a-13a. Because making the necessary
design changes would have delayed the Explorer’s release
date, Ford manayement rejected repeated requests by its engi-
neers lo increase the vehicle’s track width and lower its centet
of gravity, thereby preserving a lethal feature of the Bronco II.
/d at l2a-l4a. For cosmetic reasons, management also
increased the Explorer’s tire size, exacerbating the vehicle’s
instability. /d. at 14a. In subsequent years, as it modified the
Explorer’s design, Ford management again declined for

nN

economic reasons to improve the Explorer’s stability. /d. at
1 5a-16a.

The Explorer was not just unstable; it also had a weak
roof structure prone to crush in a rollover. /d. at lla, 16a.
Rollovers in vehicles with sturdy roofs are relatively nonvio-
lent events for passengers who are properly restrained (as was
Mrs. Wilson). /d. at 16a. Ford could have significantly
strengthened the roof for about $20 per vehicle. /d.

The Court of Appeal upheld Mr. Wilson’s $5 million
compensatory damage award and Mrs. Wilson’s $4.6 million
econoinic damaye award, but reduced her noneconomic dam-
ages to $18 million. /d. at 43a-45a, 73a, 119a. The Petition
does not challenge the resultant $27.6 million award of
compensatory damages.

With respect to punitive damages, the court found that
Ford had known that the vehicle was dangerously unstable
and prone to rollover in norma! driving conditions; had known
that the roof structure was weak and prone to collapse in a
rollover; and had known of technologically and economically
feasible ways to stabilize the vehicle and strengthen its roof
but chose for financial reasons not to do so. /d. at 52a-S3a.
The court also found that Ford had “evinced a reckless disre-
gard for the safcty of its customers” and had engaged in ‘‘‘a
pattern of deficient design regarding safety in favor of
increased financial returns and was the result of the conscious
disregard of Ford executives.’ /d. at 68a-69a. It added that
“Ford's actions were the result of intentional conduct and
deliberate decisions by Ford’s management, knowing the
unreasonable nsk of harm posed to consumers, as opposed to
a mere accident.” /d. at 69a. Consequently, it concluded that
“the reprehensibility of Ford’s conduct was high.” Jd. at 67a;
accord, id. at 71a.

Nevertheless, the court reduced the punitive damages to
$55 million, a ratio of essentially 2:1. /d. at 73a. It noted this
Court’s comment in State Farm that “‘[w]hen compensatory
damages are substantial, then a lesser ratio, perhaps only equa!

to compensatory damages, can reach the outermost limit of the
due process guarantee.’”’ /d. at 71a (quoting State Farm Mut
Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003)). In this
case, however, it concluded “that a two-to-one ratio is war-
ranted because the degree of Ford’s reprehensibility is also
high.” /d. It added that “[aJn award exceeding a two-to-one
ratio would exceed the constitutional maximum... under the
facts of this case.’ /d. at 73a.

Ford filed a Petition for Review in the California
Supreme Court which was summarily denied. Pet. 7. This
Court then granted certiorari and remanded the case to the
Califomia Court of Appeal for reconsideration in light of
Philip Morris USA v. Williams, 549 U.S. 346 (2007)
(“Williams [’). 550 U.S. 931 (2007). On remand, the Court
of Appeal held that Ford had failed to preserve the third-party
harm issue raised in Williams, and had therefore forfeited its
right to assert it, in three distinct ways: (1) Ford failed to pro-
pose a legally correct instruction dealing with the issue of
third-party harm (Pet. App. 77a-92a); (2) on appeal, Ford
failed to raise any issue regarding the failure to give a third
party harm instruction (id. at 95a-98a); and (3) it likewise
failed to raise that issue in its Petition for Review to the
California Supreme Court. /d. Ford’s Petition does not attack
this aspect of the Court of Appeal’s opinion, or otherwise
raise the third-party harm issue. Accordingly, Ford has aban-
doned the issue that was the subject of the Court’s pnor GVR
order

The California Supreme Court initially granted Ford's
second Petition for Review but deferred briefing or a decision
pending disposition of the second Philip Morris USA \
Williams case When this Court dismissed the writ in
Williams I/ as improvidently granted (129 S. Ct. 1446 (2009))
the Califomia Supreme Court dismissed review, Pet. App
120a

REASONS FOR DENYING THE
PETITION

Ford has not challenged the judgment insofar as it
awards compensatory damages for marketing a defective and
dangerous product. Instead, the Petition targets only the puni-
live damages award, and rests on only a single ground: the
asserted vagueness of California’s punitive damages law as
applied to the particular facts of this case.

The Petition should be denied. Once again, Ford seeks
to raise an issue that it failed to preserve in the Califomia
courts: although the original Court of Appeal opinion rejected
tord’s vagueness contentions, Ford failed to properly present
that issue in its onginal Petition for Review to the California
Supreme Court. Tord claims that it preserved the vague-
ness/fair notice issue by mentioning it in a footnote. However,
California law requires that an issue be raised in the text of the
brief, under an appropriate topic heading; issues raised only in
a footnote are disregarded. Moreover, to raise an issue for
discretionary review in the Califomia Supreme Court, it must
be included in a concise statement of the issues presented.
Ford did not comply with any of these requirements. And
while it subsequently attempted to resurrect that forfeited
issue by raising it on remand to the Court of Appeal, that court
properly held that the only issue before it as a result of this
Court’s GVR order was the (third-party harm issue raised by
Williams | and now abandoned by Ford. See Part |, infra

In any event, the Court of Appeal’s rejection of Ford’s
as-applied vagueness argument presents no issuc Meriting cer-
uiorart. The jury and the Court of Appeal found that Ford had
knowingly sold a dangerous and defective vehicle that could
have been made safe for a modest amount. California law
gave clear notice by statute—and tn decisional law (including
several cases involving Ford)—that such conduct could sub
ject a manufacturer to punitive damages. Ford identifies no

contlict between the decision below and any decision of this

Court, a federal Court of Appeals, or the highest court of a

wa

state. Indeed, three decisions of this Court have rejected simi-
lar vagueness challenges to punitive damages awards. See
Part Il, infra. Certioran should be denied

FORD DID NOT RAISE THE ISSUE
PRESENTED AT EVERY STAGE OF
THE STATE PROCEEDINGS.

The vagueness issue Ford now seeks to raise was pre-
sented at tral and in the Court of Appeal. Pei. 5-7. However,
lord’s representation that it “again rais[ed] its as-applicd
vagueness challenge” in its original Petition for Review to the
California Supreme Court (id. at 7) is inaccurate. Its failure to
do so forfcited the issuc as a matter of California law, and
nothing Ford did thereafter could revive it.

Under well-established California rules regarding peti
tions for discretionary review in the Supreme Court, a Petition
for Review “must begin with a concise, nonargumentative
Statement of the issues presented for review.” CAL. R. CT.
8.504(b)(1); compare S. CT. R. 14.1(a) (imposing similar
requirement on petitions for writs of certiorari) The
California Supreme Court ordinarily does not consider issues
not expressly raised or fairly included therein. CAL. R. C1
8.520(b)(2), (3); see, e.g., People v. Villa, 45 Cal. 4th 1963,
1076 (2009); Ebbetts Pass Forest Watch v. California Dep t of
Forestry & Fire Prot., 43 Cal. 4th 936, 951 n.$ (2008); Wilson
v. 2/st Century Ins. Co., 42 Cal. 4th 713, 726 (2007): com-
pare, e.g., Riegel v. Medtronic, inc., 552 U.S. 312, 128 8. Ct
999, 1011 (2008) (similar rule in this Court)

lord does not even claim to have met this requirement
and tor good reason. Its Petition tor Review identified three
“Issues Presented” on which revicw was sought. A federal
vavueness/ fair notice” claim was not among them. See
Resp. App. 4a. Nor was the issue “fairly included” in the

“Issues Presented.” Accordingly, that issue was not properly

6

presented to the highest court of California. See Beck v
Washington, 369 U.S. 541, 553 (1962). |

Moreover, California appellate rules also require that all
briefs “[s}tate each point under a separate heading or subhead-
ing summarizing the point.” CAL. R. CT. 8.204(a)(1)(B).’
This rule applies to Petitions for Review. /d@. RULE 8,504(a)
Ford did not meet this requirement either. Neither the Table of
Contents nor the section headings in the Petition for Review
refer to the issue of vagueness or fair notice. Resp. App. 2a-
3a. For this reason as well, Ford did not properly present this
issue to California’s highest court in its first Petition for
Review.

Although these deficiencies were known to Ford
(Plaintiffs drew them to the Court’s attention in opposition to
Ford's earlier certiorari petition (Bricf in Opposition 5-6, Ford
Motor Co. v. Buell-Wilson, No. 06-1068 (U.S. Apr. 3, 2007))),

Ford's Petition does not mention them. Instead, it cites one

‘Of course, the California Supreme Court has the power to decide
issues that were neither raised in the Petition for Review nor “fairly
included” therein. CAL. R. CT. 8.516(b2). But that proves nothing. This
Court's rules similarly provide that only questions presented by a petition
for writ of certiorari or “fairly included therein{ ] will be considered by the
Court.” S. CT. R. 14.1(a). Nevertheless, the Court sometimes decides
issues that are not presented or fairly included in the petition. See, e.g,
Redrup v. New York, 386 U.S. 767, 769-71 (1967); Boynton v. Virginia,
164 US. 454, 457 (1960). This occastonal practice has never prevented
the Court from enforcing Rule 14.1(a) in the vast majornty of cases. Simi
lurly, the California Supreme Court's power to consider issues that are not
presented in a Petition for Review does not prevent that Court or this Court
from enforcing the rule requinng parties seeking discretionary review to

identify the issues as to which review is sought

Cases applying thes rule are legion, See, ¢ x, Serra Club v. City of
Orange, \63 Cal. App 4th 523, 542 (2008); Roe v. McDonald's Corp , 129
Cal. App. 4th 1107, LL 14 (2005); City of Lincoln v. Barringer, 102 Cal
App. 4th 1211, 1228 (2002), Heavenly Valley v. El Dorado County Bd. of
equalization, 84 Cal App. 4th 1323, 1345 ni ? (2000), Golden Dav Sch
Inc. v. Dep't of Educ, 69 Cal. App. 4th 681, 095 n.9 (1999)

oblique statement in the Introduction to the Petition for
Review, as well as a footnote. Pet. 5. However, in light of the
well-settled California rules requiring that issues raised in a
Petition for Review be identified both in the ‘Issues Pre-
sented” and in the argument headings contained in the body of
the Petition, the few sentences cited by Ford were insufficient
to raise the vagueness/fair notice issue presented in the current
Petition.”

Moreover, what Ford said in the Introduction to the
Petition was insufficient to raise vagueness as an issue of
federal due process. In that Introduction, Ford addressed the
three sssues that it had identified in the Issues Presented por-
tion of the Petition. See Resp. App. 4a. Its discussion of the
second of these issues contended that—as a matter of
California statutory law—punitive damages could not be
awarded beca?se (in Ford’s view) the Court of Appeal’s opin-
ion authorized junes “to deem a mianufacturer’s design

‘In the reply bref filed in support of its prior petition, Ford also
relied on the statement in its Petition for Review that the California Court
of Appeal’s decision imposes

a vague regime that will permit tens of millions of dollars of
punishments to be imposed if a jury deems a manufacturer's
conduct “despicable” on the strength of nothing more than a
finding that, as will almost always be the case, the product
might possibly fave been made “safer” if more money had
been spent in making it. That is netther constitutional nor
rational. Review is necessary to conform Califomia’s prod-
uct liability and punitive damage law to reason, common
sense, and the United States Constitution. (Resp. App. 5a
(yuoted at Reply Bnef for Pctitoncr 2))

Ford's decision not to rely on this passage in its present petition ts
understandable. “A party may not preserve a constitutional challenge by
generally invoking the Constitution in state court and awaiting review tn
this Court to specify the constitutional provision it is relying upon.”
Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 77 (1988); cf Taylor +
Illinow, 484 U.S. 400, 406 n.9 (1988)

decisions malicious, and impose severe punishment, even
where undisputed objective indicators . . . affirmatively refute
malice as a matter of law.” . at 7a. Ford then asserted that

{t]his ruling contradicts California law, decisions

from other jurisdictions, and due process. This

issue is especially important because punitive

damages “‘pose an acute danger of arbitrary

deprivation of property.” (State Farm Mut. Ins.

Co. v. Campbell (2003) 538 U.S. 408, 417-18...)

(/d. at 7a)

This unexplained, fleeting reference to due process and
the quote from Campbell in the middle of a state law argu-
ment was insufficient to raise the vagueness/fair notice issue
that Ford now presents. The reference to due process did not
invoke the federal constitution; nor did it mention the void-
for-vagueness doctrine in any of the customary ways—.e., by
using the terms “void for vagueness,” “unconstitutionally
vague,” “unconstitutionally uncertain” or “lack of fair notice.”
Nor did this passage attempt to explain what was vague or
uncertain about California’s punitive damages regime, let
alone contend that California’s punitive damages statute was
unconstitutionally vague either on tts face or as applied (a
proposition that, as shown below, would have taken a great
deal of explaining). That claim is therefore barred. See Clark
v. Arizona, 548 U.S. 735, 762-65 (2006).4

These obliaue statements in the Petition for Review
contrast sharply with the vagueness arguinent Ford had pre-
sented earlier in the litigation. As the Petition correctly
represents, Ford raised the vagueness issue at trial (Pet. 5) and

“The cite to Campbell did not put the Califomia Supreme Court on
notice that a federal claim of vagueness was being asserted. ‘“‘The discus
sion of ‘a federal case, in the midst of an unrelated argument, is insufficient
to inform a state court that 1t has been presented with a claim.""” Adams v
Robertson, 820 US. 83, 88 (1997) (citation omitted)

with crystal clarity (and at considerable length) presented it to
the Court of Appeal. Pet. 6.° Surely if Ford had intended to
raise the issue again in the California Supreme Court, its law-
yers would have done so just as plainly. And if they had,
Plaintiffs’ Answer to the Petition for Review would have
responded accordingly—or risked a withering comment in
Ford’s reply. In fact, however, Plaintiffs took note of Ford’s
failure to assert vagueness as an tssue for review, and there-
fore did not address vagueness/fair notice in their Answer to
the Peution for Review. See Answer to Petition for Review,
Buell-Wilson v. Ford Motor Co., No. $146150 (Cal. S. Ct.
Sept. 18, 2006). Morcover, Ford’s reply ncither mentioned the
omission nor made any mention of the vagueness issuc itself.
See Reply to Answer to Petition for Review (Oct. 2, 2006).
Given these omissions, the Califormia Supreme Court had no
reason tc delieve that Ford sought review on a federal issue of
vagueness or fair notice. See Adams v. Robertson, 520 US.
83, 89 (1997) (constitutional issue waived where, inter alia,
petitioner failed to discuss issue in state supreme court reply
brief even though it had been raised by respondent).

Nor is the footnote cited by Ford (which was buried at
the end of the Petition fer Review) sufficient to raise the
vagueness/fair notice issue. Numerous California decisions
apply the “heading rule” discussed above, and hold that
presentation of an issue in a footnote is insufficient under
Califorma law to bnng an issuc to an appellate court’s atten-
tion. See, e.g., Evans v. Centerstone Dev. Co., 134 Cal. App.
4th ISL, 160 (2005) (‘We do not have to consider issues dis-
cussed only in a footiste”) (citation omitted); Roberts v
Lomanto, \|2 Cal. App. 4th 1553, 1562 (2903) (same);

Ford's first Appellants’ Opening Bnef devoted more than six
pages to an as-applied vagueness argument. See App. Opening Brf. 56-63,
Buell-Wilson vo Ford Motor Co., No. D045154 (Cal. Ct. App. July 8,
2005)

1Q

Unilogic, Inc. v. Burroughs Corp., 10 Cal. App. 4th 612, 624
n.2 (1992) (same).

For all these reasons, the only issue Ford presents in its
petition was not presented to the California Supreme Court “‘at
the time and in the manner required by the state law.” Webb v.
Webb, 45} U.S. 493, 501 (1981). Because Ford failed to pre-
serve it in its first Petition for Review, the vagueness issue
was forfeited.

Nothing Ford did thereafter could resuscitate this issue.
After the California Supreme Court denied review, Ford filed
a petition for certiorari that attempted to raise the issue of
vagueness. Petition for Wnt of Certiorari 9-22, Ford Motor
Co. v. Buell-Wilson, No. 06-1068 (U.S. Jan. 30, 2007). Plain-
tiffs filed a bmef in opposition pointing out that the issue had
not been preserved. Brf. in Opp. 4-6 (Apr. 3, 2007). The
Court subsequently granted the petition, vacated and
remanded for reconsideration tn light of Williams /. 550 US.
931 (2007). On remand, the Court of Appeal held that the
“third party harm’’/failure-to-instruct issue that was the subject
of this Court’s GVR order had been forfeited by Ford because
(1) it did not propose a legaily correct third party harm
instruction at trial; (2) did not raise the failure-to-instruct issuc
in its appeal to the Court of Appeal; and (3) did not raise that
issue in its Petition for Review to the Supreme Court. Pet.
App. 74a, 77a-98a.

In Ford’s bneting on remand, Ford attempted to revive
the vagueness issue. The Court of Appeal held that Ford
could not do so in light of the limited scope of this Court’s
remand order:

{Wje conclude Philip Morris does not require that

we change any of the holdings in our onginal

opinion, and thus, with some changes, “we reiter-

ate [our original opinion] in its entirety.”

= * ~ +
We... decline Ford’s (and amici curiaes’) request
that we reconsider our original holdings on the. .

I]

issues related to the punitive damages award other
than whether that award improperly punished
Ford for harm to third parties. The United States
Supreme Court's direction to this court was to
reconsider our original decision “in light of Philip
Morris.” The only issue decided by Philip Morris
was whether and when third party harm could be
considered in imposing punitive damages. Based
on our analysis of Philip Morris, our review of
Buell-Wilson 1, and the proceedings in the trial
court, we conclude that nothing in Philip Morris
requires us to reconsider the remainder of our
original decision. (Pet. App. 3a, 52a (citations
omitted))

The Court of Appeal thereupon republished without substan-
tive change its prior opinion on a number of issues, including
the issue of vagueness/fair notice. Pet. App. 61a-62a.

Because the vagueness issue had been forfeited, Ford’s
attempt to reinstate the issue by presenting it in its second
Petition for Review came too late. The issue is therefore
procedurally barred. See Union Mut. Liye Ins. Co. v. Kirchoff,
169 U.S. 103 (1898).

FORD'S “VAGUENESS/FAIR
NOTICE” CHALLENGE DOES NOT
MERIT CERTIORARI.

Even if it had not been waived by Ford’s failure to raise
the issue in its first Petition for Review in the California
Supreme Court, Ford’s “vagueness/fair notice” claim would
not warrant certiorari. As shown in Section II(C), infra, the
decision below does not conflict with any decision of this
Court. Nor does it conflict with decisions of other courts.
Section II(D), infra.

12

Nor does Ford present a substantial federal claim. It
asserts that it lacked sufficient notice that it could be liable for
punitive damages in circumstances such as those presented in
this case.° But Ford was on notice, long before it designed
the Explorer, that knowingly designing and selling a vehicle
that exposes cainsumers to r*s of severe injury or death, when
the defect could be correctew at minimal cost, could result in
punitive damages hability. indeed, nearly thirty years ago a
California court delivered this precise message to Ford in
Grimshaw v. Ford Metor Co., 119 Cal. App. 3d 757 (1981),
where the court stated that “it should have been clear (to Ford]
that a manufacturer of a dangerous, defective product might
be hable for punitive damages if it knowingly exposed others
to the hazard.” /d. at 811.

That is precisely what Ford did in this case. The Court
of Appeal affirmed, as supported by substantial evidence, the
jury’s determination that Ford knowingly produced an automo-
bile that (1) would roll over in normal driving conditions and
on dry pavement if a driver swerved to avoid an obstacle;
(2) had a roof so weak that it would collapse dunng a rollover;
and (3) could easily have been made more stable and given a
stronger roof through well-known, available and cost-effective
design changes. Pet. App. Ila-l6a, 52a-53a. Yet to avoid a
few months’ delay of the vehicle's release date and to increase
its profits, Ford declined to make feasible and affordable
design corrections urged by its own engineers. /d. at 12a-1Sa.
Ford’s Petition does not challenge these conclusions, nor

°*Ford’s argument, if accepted, would eviscerate state punitive dam-
ages Statutes, with no readily available means of legislative repair. Puni-
tive damages statutes are usually phrased as laws of general applicability,
limiting the availability of punitive damages to cases of extreme reprehen-
sibility. See p.13, infra (quoting the definitions of “malice” and “oppress-
sion” in California’s punitive damages statute). What more could a
legislature do to delineate the circumstances in which tortious conduct
could justify an award of punitive damages?

13

could it. Indeed, Ford’s own lawyer admitted to the jury that
Ford “knowingly put a defective product out on the market
and caused the family tragedy that you see before you now.”
RT8512-13.

For the reasons that follow, Ford was given ample
notice that such conduct could give rise to liability under
California’s punitive damages law.

A. California Law Gave Ford Ample Notice Of
The Circumstances Under Which Punitive
Damages Could Be Awarded.

California law carefully defines the circumstances in
which punitive damages can be awarded. Section 3294(a) of
the California Civil Code (Pet. App. 224a) requires “clear and
convincing evidence that the defendant has been guilty of
oppression, fraud, or malice.” It defines “malice” as ‘‘conduct
which is intended by the defendant to cause injury to the
plaintiff or despicable conduct which is carried on by the
defendant with a willful and conscious disregard of the rights
or safety of others.” CAL. CIV. CODE §3294(c)(1). It defines
“oppression” as “despicable conduct that subjects a person to
cruel and unjust hardship tn conscious disregard of that per-
son’s rights.” /d. §3294(c)(2). In accordance with the statute
and California precedent (see, e.g., Coll. Hosp., Inc. v
Superior Court, 8 Cal. 4th 704, 721 (1994)), the jury was
instructed that the sine qua non for either malice or
oppression—‘‘despicable conduct”—is “‘conduct that is so
mean, vile, base or contemptible that it would be looked down
on and despised by reasonable people.” RT8281. These
resinctive standards were the result of legislation adopted in
1987 for the purpose of limiting the availability of punitive
damages; they “represent{ed}] a new substantive limitation on
punitive damage awards.” Coll. Hosp., Inc., 8 Cal. 4th at 725.

Ford made the design decisions affecting Petitioner’s
Explorer between 1989 and 1997. Pet. App. 12a-l6a. By that
time, Ford had received more than ample notice, directly from

14

the California courts, that knowingly designing and selling a
defective product that could kill or cause severe bodily
injury especially where the defect could have been corrected
for a minimal cost—could give rise to liability for punitive
damages. In Grimshaw, Ford had designed a product (the
Pinto) that it knew would expose consumers to risk of serious
injury or death, a defect that it could have corrected at mini-
mal cost. 119 Cal. App. 3d at 813. Ford argued that “its due
process nghts were violated because it did not have ‘fair
waming’ that its conduct would render it liabie for punitive
damages.” /d. at 811. Grimshaw rejected this contention,
relying on cases dating back to 1941 holding that punitive
damages were recoverable “where the defendant’s conduct
constitutes a conscious disregard of the probability of injury to
others.” /d. In particular, the court stated that since the deci-
sion in Joole v. Richardson-Merrell, Inc., 251 Cal. App. 2d
689 (1967), “it should have been clear [to Ford] that a manu-
facturer of a dangerous, defective product might be liable for
punitive damages if it knowingly exposed others to the haz-
ard.” Id’

Grimshaw 1s not the only Califomia case that has held
Ford liable for knowingly designing and selling dangerous
automobiles in conscious disregard of the safety of consum-
ers. See Husson v. Ford Motor Co., 32 Cal. 3d 388, 402-03
(1982) (substantial evidence supported award of punitive
damages where Ford knew aboui failing brakes on a vehicle

‘In Grimshaw, the court said that Ford “knew that the Pinto’s tue!
tank and rear structure would expose consumers to serious injury or death
in a 20- to 30-;uile-per-hour collision” and that “Ford could have corrected
the hazardous design defects at minimal cost but decided to defer
correction of the shortcomings” for financial reasons. 119 Cal. App. 3d at
813. “Ford's institutional mentality was shown to be one of callous
indifference ta public safety” /d History does indeed repeat itself, as the
cases discussed in the text following and the findings of the Court of

Appeal in this case make all too clear

15

but deliberately failed either to warm consumers or adopt
remedial measures); Romo v. Ford Motor Co., 113 Cal. App.
4th 738, 755 (2003) (Ford held subject to punitive damages
after designing a flawed roof that crushed people during roll-
overs and declining to strength-test the roof; Ford’s conduct
was “highly reprehensible” in that its “nonaccidental, mali-
cious conduct” of knowingly placing a flawed product with
consumers showed “reckless disregard of consumers’ safety
and lives’’).

Nor could Ford reasonably have believed that compli-
ance with federal government safety regulations would pre-
clude punitive damages. 49 U.S.C. §30103(e) provides that
“fcjompliance with a motor vehicle safety standard... does
not exempt a person from liability at common law.”’ More-
over, Grimshaw had already held that punitive damages were
necessary to deter wrongful conduct because “[g]overnmental
safety standards ... have failed to provide adequate consumer
protection against the manufacture and distnbution of defec-
tive products.” 119 Cal. App. 3d at 810. There was no ambi-
guity in California law on this point.”

Accordingly, Ford had every reason to know long
before it designed and marketed the Explorer that designing
an automobile with known dangerous defects posing a serious
threat to human life and health—such as the deadly combina-
tion of a propensity to roll and a weak roof structure-—and
rejecting low-cost, safer alternatives could lead to punitive
damages.

“Similarly, as the Court of Appeal noted, no prior Califormia case
had held that “cxpert disputes concerning design provide a defense to
punitive damage lability.” Pet App. 55a. There was no ambiguity in
Caltfomia law on this point either

16

8. Ford Does Not Make (And Has Not Preserved)
A Substantive Due Process Argument, And
Amici Therefore May Not Do So.

It is important to distinguish Ford’s vagueness thcory
from a contention—which certain amici attempt to advance—
that the imposition of punitive damages in this case violates
substantive Due Process because Ford assertedly complied
with applicable laws and regulations and at least some paid
experts defended the Explorer’s design. Brf. of DRI at 10-22;
Brf. of Product Liability Advisory Council, Inc. at 2-13; Brf.
of Alliance of Automobile Mfgs. at 12-21; Brf. of Chamber of
Commerce at 2-11. ‘That substantive Due Process argument
improperly goes beyond the vagueness/fair notice argument
that Ford does make. Amici cannot expand the issue(s) raised
by Ford's Petition. See United Parcel Serv, Inc. v. Mitchell,
451 U.S. 56, 60 n.2 (1981).

Moreover, a substantive Due Process claim could not
properly have been asserted by Ford (and, a fortiori, cannot
properly be raised by amici) because that Due Process argu-
nent was never made by Ford in the state court bnefing. Ford
did argue below that, as a matter of California law, regulatory
compliance and/or the existence of a dispute among experts
precluded the imposition of punitive damages. The Court of
Appeal understood this as a state law issue, and rejected
Ford’s (and amici’) arguments. Pet. App. 52a-6la. Ford then
re-raised those arguments in its Petition for Review, but again
did so only as contentions of California law.” See Petition for
Review 25-32, Buell-Wilson v. Ford Motor Co., No. $146150
(Cal. S. Ct. Aug. 28, 2006).

In any event, even if—-arguendo—a plausible argument
could be made that the Constitution prohibits punitive dam-
ages where the defendant’s conduct complied with federal

“Neither Ford nor any of the amici even attempt to show that any
such substantive Due Process contention was presented to the California

courts.

17

regulations, or where reasonable experts might disagree, that
would be a problem of overbreadth, not vagueness, which
would be corrected by an appropriate instruction, if requested.
Such an instruction would inform the jury that if it found that
the defendant had complied with all applicable regulations, or
if it found that reasonable experts might disagree as to the
lawfulness of the defendant’s conduct, no punitive damages
could be imposed. See Williams 1, 549 U.S, at 355.'° Ford
failed to propose an instruction on the first of these points. It
did propose an instruction on the second point (AA346),
which the trial court rejected aS crroncous. '' Yet, as the Court
of Appeal held, Fords appeal did not raise any failure-to
instruct issue (and neither did its onginal Petition for Review)
As a result, Ford has forfeited the right to raise such an issue
now. Pet. App. 95a-96a."

‘" 4mici presume that the facts supporting their contentions of expert
disagreement and regulatory compliance are undisputed and established,
and therefore assume that the Court could reverse the judgment if it
accepted their substantive Due Process argument. That assumption is
incorrect. To begin with, there is no federal regulatory standard for vehicle
stability. Pet. App. 60a. As for the roof strength defect, there is a federal
regulation, but there was a factual dispute as to whether this vehicle did
comply with applicable regulations. See RT2136:24-2137:8, 2141:26
2142:13; AA2621 (evidence that Ford cheated on the FMVSS 216 roof
crush test); RT} 986:3-23, 2131:4-2132:10 (evidence that many Explorers
on the road are not strong enough to pass test). The Court must assume
that the jury resolved that dispute against Ford. See BMW of N. Am., Inc. \
Gore, 517 U.S. 559, 585 (1996)

"Ford's description of its “reasonable people could disagree”
instruction ts misleading. The passage quoted in the Petition (at 4-5) was
in the second sentence of a longer instruction AA346. But the tnal cour
rejected as erroneous the first sentence of the instruction, which Ford has
not quoted. RT8134:13-26

“Any such argument would have been meritless. The jury was
correctly instructed that it could not award punitive damages unless it
found that Ford's conduct was objectively “despicable” See p13, supra

(continued )

18

C. Ford's “Vagueness/Fair Notice” Claim Has No
Support In This Court’s Cases.

Ford cites to many of the Court’s vagueness opinions
involving dissimilar statutes applied in dissimilar contexts
Pet. 21-24 But the “rules against vagueness are not
‘mechanically applied,’ but depend in their application, on
‘the nature ef the enactment.’” Barclays Bank PLC v
Franchise Tax Bd., 512 U.S. 298, 316 (1994) (citation
omitted). That principle matters here, because all the factors
which this Court has listed in desenbing the cases in which
vagueness scrutiny 1s most relaxed are present in this case:
this case involves “economic regulation,” “civil rather than
criminal penalties,” and an applicable “scienter requirement.”
Villave of Hoffman Estates y. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 498-99 (1982).

Consequently, the most relevant vagueness cases are
those which, inexplicably, Ford ignores: the Court's recent
decisions rejecting similar vagueness challenges to punitive
damages laws far less specific than Californma’s. See 7XO
Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 465-66
(1993) (plurality opinion) (“the notice component of the Due
Process Clause is satisfied if prior law fairly indicated that a
punitive damages award might be imposed in response to
egregiously tortious conduct”); Pac. Mut. Life Ins. Co. v
Haslip, 499 U.S. 1, 19-20, 24 n.12 (1991)'°; Smith v. Wade,

{ continued)
In deciding whether Ford's conduct met this standard, the jury could con
sider Ford's evidence of regulatory compliance and expert debate. Ford
was theretore free to—and did—present such evidence, and to use that
evidence in argument to urge the jury not to award punitive damages See

p.cl, infra

Justice O'Connor dissented in Haslip, arguing that Alabama's
punitive damages law—which was implemented by an instruchion telling
the jury that “[i]mposition of punitive damages ts entirely discretionary

with the jury, that means you don't have to award it unless this jury feels

(continued

19

461 U.S. 30, 49, 51 (1983) (rejecting vagueness challenge to
punitive damages award against prison guard on the ground
that actual intent was not required and that punitive damages
could be awarded for reckless or callous indifference: “[Wle
are not persuaded that a recklessness standard is too vague to
be fair or useful”; recklessness “was sufficient to tngger a
jury’s consideration of the appropriateness of punitive dam-
ages”). While ignoring these three cases that reject a vague-
ness challenge, Ford cites no case holding a punitive damages
Statute unconstitutionally vague, either on its face or as
applied

Ner do this Court’s cases establish any general rule that
“if reasonable people can disagree about whether particular
conduct is prohibited by a statute, the fair notice required by
due process is absent.” Pet. 21. For example, Colautti v
Franklin, 439 U.S. 379 (1979), holds that a state statute regu-
lating permissible methods of abortion was impermissibly
vague where, inter alia, it did not contain a mens rea or Sci-
enter requirement, and therefore could be used to punish doc
tors who made good faith medical decisions regarding the
medically appropnate abortion procedure in a particular case
See id. at 401; see also Village of Hoffman Estates, 455 US. at
499 (“the Court has recognized that a scienter requirement
may mitigate a law’s vagueness, especially with respect to the
adequacy of notice to the complainant that his conduct ts
proscnibed’’)

hese cases are of no help to Ford because, under
Calitoria law, “an award of punitive damages first requires a
finding of scienter—malice, fraud, or oppression.” Roman
Catholic Bishop v Superior Court, 128% Cal. App. 4th 1155,
1171 (2005S). And as already shown, tt was also necessary for

continucd)
at you should du sv” (s« 99 U.S at6éunl) was void for vaguen

Id at 42-53. No other member of the Court joined that dissent

20

Plaintiffs to prove that Ford's conduct was “despicable” in the
sense that it was “so mean, vile, base or contemptible that it
would be looked down on and despised by reasonable peo-
ple.” See p.13, supra.”

In the absence of punitive damages cases directly on
point, or even cases in other contexts that would support its
vagueness theory, Ford is forced to rely heavily on a case that
does not address the constitutional issue of vagueness at all,
and admittedly involves “an issue of statutory interpretation
and not a due process challenge.” Pet. 23. Safeco /nsurance
Co. of America v. Burr, 551 U.S. 47 (2007), concems the
interpretation of a federal statute authorizing punitive damages
for “willful” violations. See id at 52. The Court held that
“willful” misconduct includes “reckless disregard” of statu-
tory duties and that if a defendant’s interpretation of the statute
is “not objectively unreasonable,” its reliance on_ that
interpretation is not “reckless” within the statute’s meaning
ld atéy

The Court's interpretation of this federal statute says
nothing about whether California's punitive damages statute
was unconstituttonally vague as applied in this case. [To begin
with, the Court has already held that recklessness is not an
unconsututionally vague standard for imposing punitive dam-
ages liability. Smith, 461 U.S. at 49-51. Moreover, Safeco’s

“The remaining cases Ford cites are no more relevant. Connally \
General Construction Co., 269 U.S. 385 (1926), does not hold that a
Statute 1s unconstitutionally vague if tts interpretation depends on the
“probably varying impressions of jurors” (Pet 21-22 (citing 269 US at
395)), but only that a statute is unconstitutionally vague if it “either torbid
or requires the doing of an act tn terms so vague that men of common
intelligence must necessarily guess at its meaning.” /d at 391. Sw. Tel &
Te! Co. vo Danaher, 238 US. 482 (1915), holds only that a statutory
penalty could not be imposed against a company where “[t}here was no
intentional wrongdoing, no departure from any prescnbed or known
standard of action, and no reckless conduct’ (id at 490})-——1e, conduct

poics apart from Ford's actions in this case

2 I

“-

analysis 1s Inappesite. In that case, the question of whether
the defendants’ misinterpretation of an adimittedly ambiguous
Statutory term was reckless, as the statute required, was a pure
issue Of law to be decided by the courts. In contrast, whether
ford knew that the Explorer posed a high msk of causing
physical harm was a question of fact to be decided by a jury.
As noted, Ford was free to—and did—argue to the jury that it
was not guilty of oppression, fraud, or malice and to support
this claim by presenting evidence of regulatory compliance
and any good-faith expert debate. See, e.g, AAS28-35;
AA2618-56; RT1723-36; RTS145, 5179 (regulatory compli-
ance); RT5152-54, $164-67; AA716-19, 756 (expert disagree-
ment).'” It was also free to use that evidence to argue that no
punitive damages should be awarded. But as long as a reason-
able jury could reject this evidence, and find that Ford’s con-
duct met California’s well-established criteria for awarding
punitive damages, nothing in Safeco prevented the jury from
resolving this factual issue adversely to it.

The “qualified immunity” cases cited by Ford (see Pet.
23-24) are also irrelevant. Those cases have nothing to do
with vagueness. Instead, they turn on a substantive rule that
public officials are only liable for unconstitutional actions
when their conduct violated “clearly established” legal princi-
ples. Ford makes no claim in its Petition that, as a matter of
substantive constitutional law, punitive damages can only be
awarded when the defendant’s conduct violated “‘clearly estab-
lished” legal principles. Its contention 1s only that Califomia
law was unconstitutionally vague, at least as applied to the

The statement of some amici (e.g, Brf. of DRI at 4 (emphasis in
original)) that under the decision below, “compliance with federal, state,
and tndustry standards ts irre/evant to the imposition of punitive damages,”
is false. [fit had been irrelevant, evidence on those issues would have been
excluded. In fact, the dectsion holds only that such compliance ts not an
absolute bar to punitive damages. Pet. App. S6a-6la

facts of this case. The qualified immunity cases have nothing
relevant to say on that issue.

D. There Is No Conflict In The Cases.

Ford purports to find conflicts everywhere—between
the decision in this case and decisions of this Court; decisions
of other state and federal courts that have addressed “‘vague-
ness as-applied” challenges to punitive damages awards; and
the general methodology used by the courts in evaluating such
claims. None of the claimed conflicts is real.

3 There is no conflict with respect to the only issue
presented by the Petition. As noted above, no case strikes
down a punitive damages statute as unconstitutionally vague
(either on its face or as applied) merely because some but not
all reasonable people (or, as in this case, paid experts testify-
ing after-the-fact) would find the defendant’s conduct lawful
or because the defendant's product complied with applicable
regulatory standards.

a Ford nevertheless argues that certioran is war-
ranted because of a supposed conflict in the lower courts
because some decisions purportedly refuse to consider as-
applied challenges to punitive damages awards once a facial
challenge to the statute has been rejecied. Pet. 10-19. Ford is
wrong. No state or federal case has ever held that as-applied
vagueness challenges are barred if a statute 1s not facially
invalid.

This includes the decision below. Ford clatms that the
Court of Appeal “effectively refused to entertain Ford’s
as-applied vagueness challenge because a 1981 decision had
found Califomia’s punitive damages statute to be facially
valid.” Pet. 3. This ts incorrect. In the first place, that 1981
case included an “as-applied” challenge, which the Court of
Appeal rejected. See Grimshaw, 119 Cal. App. 3d at 811.
Moreover, the opinion in the present case did not refuse to
entertain an as-applied challenge or ignore the particular facts

of this case. Ford’s claims to the contrary rest on both a
mischaractenzation of what the Court of Appeal said and a
truncated quotation from its opinion. In fact, in the third para-
graph of the opinion quoted tn the footnote below, which Ford
omits from its Petition (see Pet. 6), the Court of Appeal
rejected Ford’s as-applied claim on the merits.'® Ford’s asser-
tion that the California Court of Appeal “rejected Ford’s
vagueness challenge simply because other courts had rejected
vagueness challenges in other cases involving different facts”
(Pet. 18) is false.

Ford’s contention that the California courts refuse to
entertain as-applied vagueness challenges to punitive damages
awards (see Pet. 11-12) is also false. The only vagueness
challenge in Bertero yv. National General Corp., 13 Cal. 3d 43
(1974), was a facial one: the defendant contended that the
California punitive damages statute was unconstitutionally
vague “because it fails to provide sufficient guidance for the

‘Here is what the Court of Appeal said in rejecting Ford’s vague-

ness clanmn

Ford contends that if punitive damages can be
awarded on this record, Civii Code section 3294 is uncon-
ststutionally vague because it failed to give Ford fair notice
that its conduct could subject it to punitive damages. This
contention is also unavailing.

Ford made this same argument over 25 years ago in
Grimshaw, supra, 119 Cal. App.3d 757, 174 Cal. Rptr. 348
The Court of Appeal rejected it, concluding that “punitive
damages are recoverable in a nondeliberate or unintentional
tort where the defendant’s conduct constitutes a conscious
disregard of the probability of injury to others.” (/d. at
p81], 174 Cal. Rptr. 348.)

Additionally, Ford bases this contention on the fact
that, at most, reasonable people could disagree with the
decisions u made. However, we have already discussed and
rejected thiy argument, ante. (Pet. App. 61a-62a (emphasis
added))

24

trial courts charged with implementing it.” /d. at 66 n.13.
Similarly, while constitutional challenges to California’s puni-
tive damages statute were dismissed out of hand in Hasson v.
Ford Motor Co., 32 Cal. 3d 388, 402 n.2 (1982), nothing in
the decision indicates that the constitutional challenges were
based on vagueness, much less as-applied vagueness. Finally,
Egan v. Mutual of Omaha Insurance Co., 24 Cal. 3d 809, 819
(1979), did not reyect constitutional challenges at all; the court
merely noted that the proposition that Califomia’s punitive
damages statute was unconstitutional had been “frequently
rejected”’ in other cases. In fact, no California decision “‘effec-
tively preclude[s] California courts from considenng
as-applied vagueness challenges to California’s punitive dam-
ages statute” (Pet. 12)—as the decision below irrefutably
demonstrates. See pp.22-23, supra."’

The same is true for the non-California cases that Ford contends
have followed the same approach that Ford mistakenly ascribes to
California. Pet. 12. The only vagueness argument advanced in Palmer v.
A.H. Robins Co., 684 P.2d 187 (Colo. 1984), was that Colorado’s punitive
damages statutes suftered from “facial vagueness.” /d at 214. The court
therefore had no reason to address whether the statute was unconstitution
ally vague as applied. Nor was an as-applied vagueness challenge made in
Sturm, Ruger & Co. v. Day, 594 P.2d 38 (Alaska 1979), overruled on other
grounds, Dura Corp. v. Harned, 703 P.2d 396 (Alaska 1985). Instead,
defendant again raised only a challenge based on facial vagueness, con
tending that Alaska’s punitive damages statute gave “the jury .. . no stan-
dards by which to determine the extent of a defendant’s culpability and the
amount of damages to be assessed.”” /d. at 46. Likewise, in Stoner v. Nash
Finch, Inc., 446 N.W.2d 747 (N.D. 1989), the defendant claimed only that
North Dakota’s punitive damages statute was “void for vagueness" because
“the ‘vagueness’ of the proscnbed conduct, coupled with the ‘lack of
objective guidelines by which to set the amount of punishment,’ results in
‘arbitrary punishiment’” tn violation of {the Due Process Clause].”’ /d. at
755. Accordingly, none of these decisions involves a refusal by the state
courts to address an ‘‘as applied” vagueness challenge to application of a
State punitive Gamages statute

Ford's constitutiona! “‘vagueness/tair notice” claim is premised on

(continued )

bh
Wy

For these reasons, neither the decision below nor the
other state court cases Ford cites conflict with the cases Ford
identifies as having followed the correct approach to resolving
as-applied vagueness challenges. Pet. 15-17. No jurisdic-
tion—and certainly not Califormia—has ‘forever insulated”
punitive damages awards from “‘as-applied vagueness chal-
lenges regardless of the conduct at issue.” Pet. 16. To the
contrary, the California courts, like the courts in other states,
remain open for consideration of such claims.

4 Ford also contends that certiorari should be
granted to “clanfy the legal standard that courts should apply
when deciding as-applied challenges to punitive damages
statutes.” Pet. 19. It argues that such clarification is necessary
because of a supposed conflict in decisions that adjudicate
as-applied vagueness challenges. Ford says that some courts
permit punitive damages if “reasonable persons could con-
clude the conduct at issue was unlawful... even if reasonable
persons could also conclude the conduct was lawful.” /d@. In
contrast, other courts supposedly “hold that as-applied vague-
ness challenges fail only where reasonable persons could nor
conclude the conduct was lawful.”” /d. (emphasis in orginal).

This supposed conflict is a fiction. None of the cases
Ford cites to support this supposed conflict involves claims
for punitive damages. Moreover, none of these cases

(... continued)
the assertion that at least some persons would have found its conduct rea-
sonable in light of federal automotive safety standards, “ongoing genuine
debate in the engineering community,” etc. Pet. 7. No similar claim of
constitutional dimension was made in any of the other state court cases
Ford cites in trying to show the existence of a widespread conflict. None
of the defendants 1n Palmer, Day or Stoner attempted to show that their
conduct was “objectively reasonable” so as to preciude the availability of
punitive damages on an as-applied constitutional “vagueness/fair notice”
theory

"Barber v. Jefferson County Racing Ass'n, 960 So. 2d 599 (Ala.

(continued... )

26

discusses the objective reasonableness of any litigant’s con-
duct, much less addresses whether punitive damages (or,
indeed, any other civil or criminal penalties) are permissible
even if some reasonable persons would conclude that the
defendant’s conduct was lawful. Accordingly, none of these
cases supports Ford’s Petition.

That leaves Ford with two Fifth Circuit cases, which
similarly do not involve punitive damages. Both S&H
Riggers & Erectors, Inc. v. Occupational Safety & Health
Review Commission, 659 F.2d 1273 (Sth Cir. 1981), and B&B
Insulation, Inc. v. Occupational Safety & Health Review
Commission, 583 F.2d 1364 (Sth Cir. 1978), interpreted an
OSHA regulation that, inter alia, made employers responsible
for “requiring the wearing of appropnate personal protective
equipment in all occupations where there is an exposure to
hazardous conditions.” 29 C.F.R. §1926.28(a).

B&B Insulation held that this regulation could be
enforced against an employer only as applied to “conditions
which the cited employer’s industry would recognize as haz-
ards requiring the use of safety equipment.” 583 F.2d at 1366.

(... continued)

2006), cert. denied, 551 U.S. 1131 (2007), holds that the state’s cnminal
gaming law was not unconstitutionally vague as applied to the defendants’
attempt to operate slot machine-like devices at their racetracks. State v
Thirteenth Judicial District Court, 208 P.3d 408 (Mont. 2009), similarly
holds that a state statute making it a crime to leave the scene of an automo-
bile accident involving death or injury was not unconstitutionally vague as
applied Canvon Ferry Road Baptist Church of East Helena, Inc. v
Unsworth, 556 F.3d 1021 (9th Cir. 2009), holds that a state’s campaign
disclosure law was unconsttutionally vague as applied to activities that
resulted in no detriment to the putative donor and had no market value
And Haygblom v. City of Dillingham, 191 P.3d 991 (Alaska 2008), held
that 4 city ordinance requinng the euthanasia of dogs that had bitten a per-
son without provocation was not unconstitutionally vague where the con-
duct of plaintiff's dog fell within the “hard core” of the conduct prohibited
by the ordinance. /d at 997 n.21

In so holding, the court first recognized that the regulation
incorporated a tort law “reasonable man” standard, pursuant to
which “evidence of customary conduct of those similarly situ-
ated may be probative in determining his behavior.” /d. at
1370. However, the court then went on to demand “a closer
identification between the projected behavior of the reason-
able man and the customary practice of employers in the
industry” than is found in tort law. /d. The court gave two
reasons for its departure from tort concepts of reasonableness.
First, unlike the tort system, “the purpose of the [Occupational
Safety and Health Act] is preventive rather than compensa-
tory.” /d. at 1370-71. Moreover, the Congress that enacted
the Act “thought specificity of standards desirable.” /d. at
1371. Consequently, as the Fifth Circuit later stated in S&H
Riggers, the B&B Insulation court “concluded ... that rigid
application of the tort law concept [of the reasonable person
standard] would be inconsistent with the preventive goals of
OSHA and Congress’s expressed preference for specific rather
than general standards.” S&H Riggers & Erectors, 659 F.2d
at 1277. S&H Riggers confirmed B&B Insulation, but added
an additional ground for holding an employer liable for violat-
ing the OSHA regulation in question where the employer
has ‘‘actual knowledge that personal protective equipment is
required for employee safety.” 659 F.2d at 1281."

These two Fifth Circuit cases are irrelevant here, for
multiple reasons. First, these cases interpreted a new federal
regulation that was so vague that “no two members of the
[Occupational Safety and Health Review] Commission had
ever reached agreement on the regulation’s meaning.” S&H
Riggers, 659 F.2d at 1281. In contrast, this case concems a
long-standing state statute, whose operative terms are not only

'"Ford states that this exception does not apply if the employer
“could reasonably conclude that additional... protection was not neces-
sary.” Pet. 21 (purporting to quote 659 F.2d at 1283). No such language

appears in the opinion

28

defined in the statute itself but have also been the subject of
innumerable judicial decisions that have elaborated its mean-
ing in situations very much like those presented here. See
pp.14-15, supra. This makes all the difference; indeed, even
S&H Riggers recognized that the “reasonable person stan-
dard”’ is “‘one of the rudimentary precepts of our law’”’ and
concluded that “[p]ossibly a reasonable person standard that
does not accept industry practice as controlling can give
employers adequate notice of the requirements of [the OSHA
regulation].”” 659 F.2d at 1280 (citation omitted). Moreover,
the courts in B&B Jnsulation and S&H Riggers knowingly
departed from common law standards of notice to further
OSHA’s “preventive purpose and the intended specificity of
its standards” (583 F.2d at 1371), concerns that have no place
in implementing common law rules. For these reasons, Ford
cannot cite a single case —and there is none——that has relied
on these Fifth Circuit decisions in addressing a constitutional
due process/‘fair notice” challenge to a punitive damages
award.””

"Even if the rules promulgated by the Fifth Circuit in the two
OSHA cases could be shochomed wholesale into the quite different
domain of punitive damages Ford would not be helped. As noted above,
S&H Riggers expressly pennits the imposition of administrative penalties
where the employer had ‘“‘actual knowledge” that safety equipment was
required. See 659 F.2d at 1283. That principle forecloses any “fair notice”
claim here. As the Coun of Appeal found, Ford knew that the Explorer
wus dangerously unstable and prone to rollover in normal driving condi
trons, knew that the roof structure was weak and pronc to collapse in a
ro!lover, and knew of technologically and economically feasible ways to
stabilize the vehicle and strengthen its roof that it reyected for financial
reasons, Pet. App. S2a-Sda

9

“&

CONCLUSION

Che Petition should be dented.

Respectfully,

DENNIS A. SCHOVILLEI
Louis G. ARNELI
SCHOVILLE & ARNELL, LLP

JEROME B. FALK, JR
Counsel of Record
STEVEN L. MAYER
JOHN P. DUCHEMIN
HOWARD RICE NEMEROVSKI CANADY
FALK & RABKIN
A Professional Corporation

APPENDIX

APPENDIX

IN THE
SUPREME COURT OF CALIFORNIA

BENETTA BUELL-WILSON et al.,

Plainuffs and Respondents,

FORD MOTOR COMPANY, etal

Uetendants and Appellants

After A Decision By The Court of Appeal
Fourth Appellate District, Division 1, Case Nos. D045154, D045579

San Diego County Supenor Court
(he Honorable Kevin A. Enright
No. GIC800836

PETITION FOR REVIEW

THEODORE J. BOUTROUS, JR. (132099) DANIEL M. KOLKEY (79102)
WILLIAM E. THOMSON (187912) GIBSON, DUNN &
GIBSON, DUNN & CRUTCHER LLP CRUTCIIER LLP

333 S. Grand Avenue, Suite 4700 One Montgomery Street
Los Angeles, CA 9007) San Francisco, CA 94104
Vel: (213) 229-7000 Te): (415) 393-8200

Fax: (213) 229-7520 Fax: (415) 986-5309

THEODORE B. OLSON (038137) Attorneys for Appellant
GIBSON, DUNN & CRUTCHER LLP Ford Motor Company
1050 Connecticut Avenue, N.W

Washington, DC. 20036-5306

Telephone. (202) 955-8500

Facsimile: (202) 467 0539

TABLE OF CONTENTS

ISSUES PRESENTED FOR REVIEW

WHY REVIEW SHOULD BE GRANTED

FACTUAL AND PROCEDURAL BACKGROUND

\ [he Alleged Stability Defect
=) lhe Alleged Root Defect
( (he Verdict And Appeal

DISCUSSION

| [his Court Should Grant Review [To Secure
Uniformity Of Decision Regarding The
Admissibility Of Industry Standards and
Custom [n Design Defect Actions

\ [he Court Should Grant Review To
Decide If Industry Standards and
Custom Evidence Is Admissible On
[he Design Defect Issue

| Such Evidence Is Relevant To
Both Prongs Of The Barke?
Defect Inquiry

Ihe Courts of Appeal Are Split

On This Issuc

[he Court Of Appeal’s Decision
('ontradicts [he Restatement

Third Of Torts

TABLE OF CONTENTS

) .
r Ape
} Ihe Court O! Appeal's Decision
Is Inconsistent With [he Rule In
The Majority Of Other States
.. 'he Court Should Also Grant Review
lo Make Clear That Such Evidence Is
Admissible On Punitive Damage
sucs
{] This Court Should Grant Review To Addre
[he Standards For Imposing Punitive
Damages In Product Design Cases Unde:
Sec tion 3994
If] This Court Should Grant Review To Clarify
lhe Standards For Scrutinizing Punitive
Damages lor Excessiveness Under The Duc
Process Clause In The Product Liability
Context
\ Misinterpretation Of The De Nov
Review Standard 5
B Misinterpretation Of he
2

R eprenens bility Guidep

CONCLUSION

CERTIFICATION OF WORD COUNT 38

ISSUES PRESENTED FOR REVIEW

[In a product lability design case, 1s evidence of
industry standards and custom, including the product's real
world safety performance relative to comparable products,
relevant to the issues of design defect and punitive damages?

2 In a product lability design case, can malice
within the meaning of Civil Code section 3294 be deemed
established by clear and convincing evidence against a motor
vehicle manufacturer where (a) the vehicle complies with
applicable federal standards that are required by law to “meet
the need for motor vehicle safety,” (b) the federal government
has rejected the precise standards used by plaintiffs’ expert to
condemn the product as defective, (c) the vehicle is as safe o1
safer than comparable vehicles, and (d) there is an objectively
reasonable, genuine debate over whether the product 1s
detective?

3, In evaluating punitive damages pursuant to the
federal due process de novo review standard, may a court
(a) apply the state-law substantial evidence test to presume
that the jury made findings it did not expressly make and to
disregard objective factors mitigating reprehensibility, and
(b) punish the manufacturer’s lawful conduct, including its
sale of a product to third parties not before the court, even
where the manufacturer prevailed in the previous eleven cases

involving that same product?

Sa

WHY REVIEW SHOULD BE
GRANTED

The decision below creates new and draconian rules for
product liability cases, including a virtual liability-without-
fault standard for punitive damages. Unless reviewed and
overtumed, that decision will render it irrelevant that a
manufacturer’s design decisions resulted in a product that
complies with industry standards and custom, comporis with
relevant federal safety standards and reasonable policy
judgments, and performs as well or better than comparable
competing products. In place of these knowable standards,
the decision substitutes a vague regime that will permit tens of
millions of dollars of punishments to be imposed if a jury
deems a manufacturer's conduct “despicable” on the strength
of nothing more than a finding that, as will almost always be
the case, the product might possibly have been made “safer” if
more money had been spent in making it. That is neither
constitutional nor rational. Review is necessary to conform
Califomia’s product liability and punitive damage law to
reason, common sense, and the United States Constitution.

Before this product design trial, eleven Ford Explorer
cases involving similar claims had gone to judgment, and in
all eleven cases judgment was entered in favor of Ford Motor
Company (hereafter “Ford”’). (Appellant's Appendix 1154-
1237 (hereafter ““AA’’).) But in this case, the jury returned
split verdicts finding that the Explorer was defective, and that
Ford had acted with “malice” in designing it. The jury
awarded an astonishing $368 million in compensatory and
punitive damages.

Although the Court of Appeal found that the jury was
inflamed by “passion and prejudice” and not acting as a “fair
and neutral trier of fact” (Buell-Wilson v. Ford Motor
Company (August 17, 2006, D045154, D045579) — slip
opinion, p. 37 (hereafter “slip opn.’’)), and thus reduced the

6a

compensatory and punitive damages to $82.6 million, it
otherwise affirmed the judgment. In so doing, the court
declared that the jury was empowered to regulate automotive
safety ~ even to the point of overnding the federal agency
expressly charged by Congress with this responsibility —
“because ‘[g]overnmenta! safety standards... have failed to
provide adequate consumer protection.’ (/d., pp. 49-50.) At
the same time, tn deciding three important issues of law, the
court jettisoned as irrelevant the most reliable and objective
information for making decisions about product design and
safety.

First, the court held as a matter of law that industry
standards and custom — inciuding comparative accident
Statistics showing that the product was as safe or safer than
comparable products — are “irrelevant not only to the issue of
defect, but also to punitive damages.” (Slip opn., p. 24.) This
holding departs from the rcasoning of Barker v. Lull
Engineering Co. (1978) 20 Cal.3d 413 (hereafter Barker),
extends a split among the Califomia courts of appeal, and
places California at odds with the majority of other
jurisdictions, as well as the Restatement Third of Torts,
Product Liability. The court’s ruling that it is “reversible
error’ (slip opn., p. 23) to allow introduction of such data
regarding how products comparatively perform in the real
world wil! preclude both plaintiffs and defendants from
providing juries with the most crucial information -- precisely
the kind that actual govemmental regulators themselves would
rely on — for making decisions about public safety. (See Daly
v. Gen. Motors Corp. (1978) 20 Cal.3d 725, 746 [Product
designs do not evolve in a vacuum, but must reflect the
realities of the market place, kitchen, highway, and shop”’);
Bammerlin v Navistar Int'l Transp. Corp. (7th Cir. 1994) 30
F.3d 898, 901 [Jurors are not engineers, and data on accident
rates speak more loudly than abstract arguments’ ’].)

Second, the court held that juries are authorized to deem
a manufacturer’s design decisions malicious, and impose
severe punishment, even where undisputed, objective
indicators — such as ongoing genuine debate in the
engineering community, accident data showing the product is
among the safest in its class, and governmental regulatory
decisions confirming the manufacturer’s judgment —
affirmatively refute malice as a matter of law. This ruling
contradicts California law, decisions from other junsdictions,
and due process. This issue is especially important because
punitive damages “pose an acute danger of arbitrary
deprivation of property.” (State Farm Mut. Auto. Ins. Co. v.
Campbell (2003) 538 U.S. 408, 417-18 (hereafter Strate
Farm).) The danger is heightened in design defect cases,
which require jurors to second-guess complex policy
judgments, in hindsight, regarding whether a product’s utility
outweighs its nsks, and always in the context of an accident
resulting in tragic personal injuries likely to provoke the jury’s
passion.

Third, the court misinterpreted the due-process
excessiveness standards governing punitive damages. These
standards require “exacting” de novo judicial scrutiny (see
State Farm, supra, pp. 417-18), but the court conflated de
wove review with state-law substantial evidence analysis and,
as a result, declined to consider key objective factors tn
upholding a record-setting $55 million punishment. Instead,
the court relied on factors condemned by State Farm, such as
Explorer sales to consumers not before the court, even though
Ford had prevailed in the cleven pnor Explorer cases.

For these reasons, this Court should grant review

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0973%3A2. Public record. Not legal advice.